Section 21: WHS Management or Control of Fixtures, Fittings and Plant

Regulatory citation: Model Work Health and Safety Act, Section 21, Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces

What Is the Section 21 Duty?

Section 21 of the model Work Health and Safety (WHS) Act places a duty on a person conducting a business or undertaking (PCBU) to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace. The Act calls this person the person with management or control of fixtures, fittings or plant at a workplace. The duty is owed to any person, not only workers.

Two groups are excluded. The occupier of a residence is not covered unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking. A person prescribed by the regulations is also excluded.

Why Section 21 Matters

At many workplaces the person who controls a machine, a lift or a fixed installation is not the person who employs the people using it. A building owner may control lifts, or a hire company may control a crane. Section 21 makes sure whoever controls the item is responsible for its safety, whoever happens to be using it or standing near it.

Core Obligations

1. Work Out Whether You Have Management or Control (s21(1))

The duty applies only to the extent that your business manages or controls the fixtures, fittings or plant, and that control can be partial. The Act defines plant to include any machinery, equipment, appliance, container, implement and tool, and any component or anything fitted or connected to them. Fixtures and fittings include items such as built-in shelving, anchor points, lighting and doors.

2. Keep Fixtures, Fittings and Plant Without Risks (s21(2))

The person with management or control must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person. Under the Act, health includes psychological health as well as physical health.

3. Apply the Reasonably Practicable Test (s18)

Section 18 sets out what is reasonably practicable. You weigh the likelihood of the hazard or risk, the degree of harm, what you know or ought reasonably to know about it and how to deal with it, and the availability and suitability of ways to eliminate or minimize it. Cost is considered last, and it only justifies not acting if it is grossly disproportionate to the risk.

4. Eliminate, Then Minimize (s17)

Risks must be eliminated so far as is reasonably practicable. If that is not reasonably practicable, they must be minimized so far as is reasonably practicable.

5. Coordinate With Other Duty Holders (ss14 to 16 and s46)

Duties cannot be transferred, and more than one person can hold the same duty. Each duty holder must meet it to the extent of their capacity to influence and control the matter. Under section 46, each person with a duty on the same matter must, so far as is reasonably practicable, consult, cooperate and coordinate activities with the others.

6. Meet the Plant Duties in the Regulations

The model WHS Regulations add detail for a person with management or control of plant at a workplace. Part 5.1 includes duties to manage plant risks, prevent unauthorized alteration, use guarding, and have plant maintained, inspected and tested by a competent person.

7. Know the Consequences (ss31 to 33)

Failing to comply with the section 21 duty is an offence. Depending on the conduct and the harm or risk involved, it may be prosecuted as a Category 1, 2 or 3 offence under sections 31 to 33, with maximum penalties that are higher for bodies corporate than for individuals.

Common Compliance Approaches

Map Who Controls What

Use leases, hire agreements and contracts to record who controls each item of plant and each fixture or fitting, including who maintains it and who can isolate it.

Keep a Plant and Asset Register

List the plant, fixtures and fittings you control, with inspection, maintenance and registration dates, and assign an owner for each.

Share Information

Give users and other duty holders the information they need, such as operating limits and how to report faults.

Example: Section 21 in Practice

A logistics company leases a warehouse from a property owner. The lease says the owner controls the roller doors, fixed lighting and roof anchor points, while the tenant controls its pallet racking and forklifts. During a routine check, the tenant finds a pallet rack upright dented by a forklift. It unloads the bay, tags it out and has a competent person inspect it before repair. A week later, a roller door motor fails and the door drops unexpectedly. The tenant reports it, and the owner isolates the door and has it repaired and serviced. Both parties then agree a shared defect log.

Related regulations: WHS section 20 management or control of workplaces, WHS plant and structures, WHS primary duty of care.

Note: This summary is based on the model WHS Act published by Safe Work Australia. The model laws only take effect when a state or territory adopts them through its own legislation, and each jurisdiction's laws can differ in wording, numbering and penalties. Victoria has not adopted the model WHS laws and has its own OHS laws. Always check the legislation and codes of practice that apply in your jurisdiction.

Frequently Asked Questions

Does section 21 apply to a home-based business?

It can. The occupier of a residence is excluded unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking.

Who has the duty for hired plant?

Often more than one party. The hire company and the business using the plant can each have management or control of it to some extent, and each must meet the duty to the extent of their capacity to influence and control the matter.

How is section 21 different from section 20?

Section 20 covers the workplace itself, its means of entering and exiting and anything arising from it. Section 21 covers the fixtures, fittings and plant at the workplace. A single business can hold both duties.